The Case for Diversity in Legal Education
Why doesn’t TWU just get with the program and accept the reality of gay marriage in Canada? Why cling tenaciously to outdated beliefs about sexuality and marriage that many Canadians consider to be silly and naïve, or even bigoted and hateful?
Diversity in a free society is the short answer to both questions. I speak here of real diversity of belief, opinion, and lifestyle choices, not only diversity in skin colour and sexual orientation as can often be found among those who think alike and practice similar lifestyles.
The TWU controversy raises the fundamental question of whether Canada should remain a free and diverse society, or take a significant step towards more government control over citizens’ expression, association, and lifestyle choices. The urge to avoid hurt feelings and the urge to achieve peace through conformity (albeit only a superficial peace), are powerful forces that challenge freedom.
The Federation of Law Societies of Canada has approved TWU’s law program, based on its academic credentials and professional standards. TWU’s court actions against the law societies of British Columbia, Ontario and Nova Scotia raise the question of whether citizens, through voluntary associations, have the right to establish their own codes of conduct and to develop and practice their own beliefs without their members being denied admission to a profession for which they are otherwise qualified.
Authentic diversity
Tolerance of authentic diversity in thought, speech, religion, association, and lifestyle choices is what marks the difference between a free and democratic society, and a totalitarian state. Forced conformity – whether imposed by a dictatorship or by a democratically elected government – is incompatible with freedom. Free societies tolerate minority religions, the expression of minority opinions, and the flourishing of various minority associations that are created and maintained by those who reject the majority’s ideology or worldview.
Authentic diversity should matter to everyone, because Canada’s fundamental freedom of conscience and religion is not limited to people who are religious as such. Every person holds metaphysical beliefs in respect of questions such as: Why do we exist? What is right and wrong? How should we behave? Science can tell you how to end the life of a convicted murderer, but not whether or when it is right or wrong to do so. The Charter protects the rights of atheists, agnostics and theists alike to ponder these questions, arrive at their own conclusions, share their conclusions with others, and act upon their convictions. A free society protects atheists and agnostics from government coercion as much as it protects theists.
Insisting that Canadian law schools (or any other kind of institution) must subscribe to a particular set of beliefs about marriage and sexual behaviour threatens the freedoms of everyone, including gays and lesbians.
Authentic diversity in legal education
The law societies of B.C., Ontario and Nova Scotia often cite “diversity” as their reason to oppose TWU’s law school. This claim is ironic, since anyone looking for actual diversity of thought and opinion would have difficulty finding it at an existing Canadian law school. Canada has indisputably the most monolithic body of law schools in the western world. They all promote a politically correct worldview which rarely if ever questions the progressive orthodoxies of radical feminism, socialist economics, aboriginal entitlements, and libertine sexual politics. Alternative views, including those of religious adherents, are rarely presented, and the purpose of discussing such views at all is often just to mock and deride them. Those shouting the loudest for “tolerance” and “diversity” are in fact the most intolerant of any real diversity. What they plainly seek is conformity.
Democratic intolerance
Tolerance does not consist of using “diversity” and “respect” as slogans to attack the creation of actual diversity in legal education or to censor disagreements about sex. Rather, tolerance means accepting the authentic diversity expressed by a wide range of different associations which adhere to different worldviews or belief systems.
Democracies like Canada, while embracing freedom in theory, can easily abandon their commitment to minority rights when doing so proves popular at the ballot box. For example, in the 1950s the Quebec government persecuted communists and Jehovah’s Witnesses through targeted laws,1 very likely with the full support of Catholic voters who formed the overwhelming majority of the electorate. In the majority’s mind, there was nothing wrong with the legal suppression of “Bolshevik propaganda” in Quebec, or with restricting the distribution of anti-Catholic Jehovah’s Witnesses tracts in Quebec City.
Majorities, whatever their nature or composition, see their own beliefs as objective, true and the only valid basis for sound public policy. Majorities generally mean well when restricting freedom, suppressing minority rights in the name of some higher good. This is why societies do not truly become more tolerant with time. Instead, they merely change the object of their intolerance. Yesterday’s Jews and gays are today’s Evangelical Christians and traditionalist Catholics. Yesterday’s public policy goals of religious and moral purity are today’s public policy goals of equality and non-discrimination.
Sexual ethics: today’s secular majority
In 2015, the majority of Canadians do not worship weekly at a church, mosque, synagogue or temple. Many have no knowledge of what various religions actually teach, or why they teach it. The religious idea that sex ought always to be linked inextricably with marriage and procreation sounds absurd to many Canadians, especially younger ones. Worse than absurd, religious teachings that denounce sex outside of marriage as sinful (“wrong”) can seem hurtful, even harmful and hateful. In a culture where most people view sex as simply a toy for adults and teenagers to make life as pleasurable as possible, with or without the purely optional burdens of marriage and the inconvenience of parenthood, the religious view of sex as God’s sacred gift is offensive. When religion’s insistence on sexual restraint and self-control is combined with its definition of marriage as the union of one man and one woman, this insistence is perceived by some as bigoted and hateful towards the LGBTQ+ community. However, to impute nefarious motives to people who hold to a particular opinion is unhelpful to understanding that opinion, and is also unhelpful to refuting the opinion if it is wrong.
Majorities do not need constitutional protection
Tolerance for unpopular beliefs – not popular ones – is what separates the free society from the totalitarian state. As the Supreme Court of Canada held in R. v. Zundel: “The view of the majority has no need of constitutional protection; it is tolerated in any event.”2 For a free society to remain free, its citizens must acquire the maturity to cope with their feelings of incomprehension and outrage when confronted with doctrines they consider putrid and offensive. Freedom depends on citizens accepting that other people can and do have radically different conceptions of reality, including unpopular ideas about sexuality. I cannot enjoy freedom of expression myself unless I grant my neighbour – whose opinions I may abhor – the same freedom. A legal right to be free from hurt feelings, if it existed, would destroy freedom of expression as well as freedom of association.
Authentic diversity in voluntary associations
A free society tolerates an authentic diversity of groups and organizations, including those with unpopular beliefs and practices. Every imaginable association, from the Liberal Party to the United Way to the United Church to the Vancouver Pride Society, has its own beliefs, goals, rules and practices. Sports clubs, temples, charities, schools, orchestras, ethnic associations, and political parties all engage in discrimination against those who disagree with the association’s beliefs, goals, rules or practices. Authentic diversity in a free society is protected when each association enjoys the freedom to define its own raison d’etre, and to create its own rules.
Every voluntary association discriminates. The constitution of Out for Kicks,3 Vancouver’s gay soccer league, has as one of its purposes the elimination of prejudice and discrimination based on sexual orientation. It would be safe to assume that an Evangelical Christian who disagrees with LBGTQ+ worldviews, especially one who claims to have experienced a change in her sexual orientation, would not feel welcome to join Out for Kicks. Or, more accurately, she would be welcome to join only if she refrained from openly sharing her personal experiences with, and beliefs about, sexuality. She might argue that she cannot abide by the Out for Kicks constitution and also be true to herself, and that she is not welcome there. After all, her religious beliefs and her own experience of sexuality form the core of her identity. Nevertheless, if she disagrees with Out for Kick’s beliefs and practices, her choices are to abide by the Out for Kicks constitution or play soccer elsewhere. To suggest that Out for Kicks needs to change its own constitution, in order to make everyone feel welcome, is not compatible with the free society.
Other examples are easy to come by. The Turkish Society of Canada likely does not provide a welcoming environment to Canadians of Armenian ancestry, even if that Society sincerely makes every effort to be welcoming of everyone. The government does not require that Society to recognize the 100th anniversary of the Armenian genocide. A free society does not force an Orthodox synagogue to ordain a female rabbi, even if some Jewish women feel unwelcome at that synagogue by virtue of its male leadership requirement. The government does not force an animal rights group to hire a qualified job applicant who enjoys recreational hunting, or who participates in rodeos. In a free society, the government does not force the Liberal Party of Canada to accept pro-lifers as election candidates. That is for Liberals to decide themselves, without facing government coercion.
Freedom of association ceases to exist when government bodies try to coerce an association to alter its mission, purpose, or belief system in order to suit the ideological preferences of individuals who disagree with that association. This is exactly what three law societies demand of TWU: change your Community Covenant, or else your law school graduates, even though they are fully qualified to practice law, will not be welcome to join the legal profession.
“Discrimination” is a misleading term
Originally, the word “discrimination” simply meant making a distinction. It was a neutral or even positive term: a “discriminating shopper” is someone with sophisticated tastes. Since the 1960s, the word discrimination has gradually come to mean bigotry: failing to promote a qualified woman in the workplace, or refusing to rent an apartment to a non-white family. The noble ideal of protecting employees, tenants and consumers from bigotry in commercial settings was the impetus for human rights legislation. But in Canada today, the legal right to be “free from discrimination” is used aggressively to attack private and voluntary associations like gyms, barber shops, magazines, martial arts studios, and Christian schools and universities.
When a martial arts studio in Halifax requires bowing to the sensei, or physical contact between men and women during sparring, it most certainly discriminates against the Muslim human rights complainant who disagrees with these practices. But this discrimination is not bigotry. Further, people are free to pursue other sports and arts. When a Christian school or university insists on a code of conduct for its students and staff, in order to create a community that is consistent with its beliefs and teachings, this discriminates against people who have no interest in abiding by that community’s standards.
In a free society, every voluntary association necessarily discriminates on the basis of its beliefs, interests, activities, or identity. Freedom of association – one of the cornerstones of Canada’s free society – is undermined by a new, intolerant “right” to force changes on associations that one disagrees with. This amounts to thinly disguised totalitarianism.
A half-truth is not the whole truth, and is therefore misleading
Three law societies claim that TWU’s Community Covenant “discriminates” against gays and lesbians. This claim ignores the Community Covenant’s application to all TWU students, regardless of sexual orientation. Unmarried heterosexuals who insist on being sexually active are not welcome to attend TWU. Sexual activity aside, the Community Covenant prohibits vulgar or obscene language, drunkenness, viewing pornography, gossip, and other legal activities. In short, TWU’s expectations “discriminate” against the majority of Canadians, for a myriad of reasons, all of which boil down to an unwillingness to practice an Evangelical Christian lifestyle. To characterize the Community Covenant as “discriminatory against gays and lesbians” is therefore misleading.
Those who disagree with Evangelical Christian teachings are not compelled to attend TWU or to abide by its rules. The same holds true for every other voluntary association in Canada, of which there are hundreds of thousands. Those who reject traditional religious teachings about sexuality and marriage will not be interested in attending TWU. They are not victims but free citizens, with every right to study law (and other subjects) elsewhere.
If individuals are permitted, why can’t they associate with each other?
The three law societies will readily admit into membership Christians who, as individuals, have practiced their beliefs about sexuality and marriage while attending any Canadian law school other than TWU’s. It is only when these same individuals, adhering to the same beliefs and committed to the same lifestyle, associate with each other in a community while studying law, that the law societies consider these students unfit to enter the legal profession. Essentially, the three law societies are punishing the choice of individuals to share their beliefs and to pursue common goals in community. The law societies directly attack Charter-protected freedom of association.
Reality check: lawyers don’t discriminate
While seeking to exclude graduates of TWU’s law school from entering the legal profession, none of the three law societies object to current, practicing lawyers adhering to the “wrong” beliefs about marriage and sexuality. It appears that the law societies know full well that having the “correct” views on sexuality and marriage is not relevant to lawyers providing clients with competent legal services. Practicing lawyers already reflect the diversity of Canada’s population. Many (and probably most) lawyers hold to the majority opinions about sexuality and marriage. Nobody has provided evidence to suggest that LGBTQ+ individuals are not well-represented in the legal profession, or are not receiving adequate legal representation.
In 2001, the Supreme Court of Canada ruled that TWU has the Charter right to include traditional sexual morality as part of its community standards,4 in a case where the B.C. College of Teachers refused to accredit TWU education graduates. In the absence of evidence that TWU graduates were mistreating gays and lesbians, the Court decisively rejected the “discrimination” argument: “there is nothing in the TWU Community Standards, which are limited to prescribing conduct of members while at TWU, that indicates that graduates of TWU will not treat homosexuals fairly and respectfully.”5
The Charter serves to protect the individual from government
The Charter does not apply to private institutions like TWU, but rather to government bodies like the three law societies which are now discriminating against TWU. In Trinity Western University v. Nova Scotia Barristers’ Society, Justice Campbell acknowledged that some may experience “outrage, emotional pain, minority stress, or hurt feelings” from knowing that a graduate of a private Christian university in B.C. can become a lawyer in Nova Scotia.6 But this does not provide the Barristers’ Society with any grounds to violate the’ Charter-protected fundamental freedoms of Canadians. The Charter cannot be transformed into “a tool in the hands of the state to enforce moral conformity with approved values.”7
What about equality rights?
Every Canadian without exception should have an equal right to exercise her or his fundamental freedom of expression, conscience, religion and association as that person sees fit. In a free society, equality rights should mean that Muslims, Evangelical Christians, gays and lesbians, traditional Catholics, and Orthodox Jews can all express their opinions freely, and can all form the voluntary associations of their own choosing. But freedom is destroyed in the name of equality when voluntary associations are ordered by government to change their beliefs, goals, rules or practices in order make everybody – everyone – feel equally welcome to join and belong to those associations. For example, Canada is no longer a free society when a Muslim association is forced by government (or by a government body like a law society) to practice complete gender equality as understood by modern, progressive Canadians. Freedom is destroyed when Vancouver’s gay soccer league, Out for Kicks, is ordered by government in the name of equality to welcome as soccer players Muslims or Evangelical Christians who openly express their disapproval of gay sex. When a government body orders TWU to change its Community Covenant in order to please those who disagree with it, this destroys freedom of association for TWU, and for every other voluntary association as well.
A free society can survive and flourish only if equality is defined as every person’s equal right to exercise her or hisCharter freedoms according to that person’s beliefs and conscience. When equality is defined as including a right to impose changes on associations that one disagrees with, society is no longer free, and authentic diversity can no longer flourish.
Conclusion
The TWU law school controversy provides an opportunity to choose the free society and authentic diversity over authoritarianism and conformity. A free society does not allow hurt feelings or majority opinion to deny individuals their right to create, maintain, and belong to the voluntary associations of their own choosing. The freedom to express offensive opinions, practice minority religious beliefs, and create unpopular organizations forms the cornerstone of Canada’s free and democratic society. These fundamental freedoms benefit all Canadians, including gays, lesbians, and Evangelical Christians.
- See e.g. Saumur v. City of Quebec, [1953] 2 S.C.R. 299 and Switzman v.
Elbing, [1957] S.C.R. 285.
- R. v. Zundel, [1992] 2 S.C.R. 731 at 753.
- http://www.outforkicks.ca
- Trinity Western University v. College of Teachers, 2001 SCC 31.
- Ibid. at para. 35.
- Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC
25 at para. 180.
- Ibid. at para. 222.